Relations frosty as DPP, Judiciary clash over Mwilu

On May 24 this year, as calls for stern action against those suspected of having stolen from the National Youth Service (NYS) grew, the Director of Public Prosecutions Noordin Haji wrote a brief letter to Chief Justice David Maraga.

In the letter, which the lawyers defending the NYS suspects have picked on to demonstrate interference with the independence of the Judiciary, Mr Haji was requesting that “our institutions (Judiciary and ODPP) robustly implement section 4(4) of the Anti-Corruption and Economic Crimes, that is, the hearing of corruption cases on a day-to-day basis until conclusion.”

CRITICISING

“For my part, I have already directed my officers not to seek adjournments unless in exceptional circumstances,” the letter by Mr Haji reads. In essence the letter was appealing for some sort of co-operation between Mr Haji’s office and the judiciary in the fight against corruption.

But events of the past week involving the approach Mr Haji took to arrest and arraign in court Deputy Chief Justice Philomena Mwilu could dampen that co-operation, with Judiciary insiders and advocates criticising the DPP over the manner he handled the matter.

BIG FISH

Although the DPP still enjoys considerable public support because of the way he has gone for the big fish hitherto untouchable, he could be facing some undeniable obstacles in the future with lawyers and Judiciary colleagues of Justice Mwilu expressing concerns over the way he has handled the matter against the Deputy Chief Justice.

Senator Kithure Kindiki, a professor of public law and current Deputy Speaker of the Senate, warned that the step by the DPP is a big blow for the Judiciary and is bound to raise serious constitutional issues.

“It is very awkward to take a sitting DCJ before a magistrate. In my view, there were three options the DPP and DCI should have pursued,” he said. According to the Senator, if Mr Haji was convinced that he had a compelling case against her, the first route would have been to refer the matter to the Judicial Service Commission (JSC) for the initiation of a tribunal to remove the Justice Mwilu from office then prefer criminal charges against her once she was out. The second option, the senator said would have entailed negotiating with the Judiciary to have her resign or step aside then charge her.

PROSECUTE

“The other route is to wait until she retires. Criminal charges do not have a time limit. It is just like when we say that the president is immune from criminal and civil proceedings. That provision only applies while he is in office. After the person leaves office, you can prosecute them for the things they did while in office. This is not to say that she should not be held accountable under the law. We can deal with law breakers but save the institution of the Judiciary,” said Senator Kindiki.

The Senator says that the DCJ could also save the Judiciary from the potential institutional rivalry by choosing to step down. Chief Justice Maraga on Wednesday declined to publicly comment on the arrest of his deputy. “Leave it at that. I don’t want to comment on matters that are in court,” he told journalists who were pestering him with questions of the arrest of DCJ Mwilu on Tuesday.

Like Prof Kindiki, a colleague of Justice Mwilu said the matter “could have been handled better.”

MONOPOLY

“Arresting a sitting judge is morally wrong but legally right. Sometimes you look at the realities you face,” the judge who requested to speak on condition of anonymity said. The correct approach, though not supported by law, would have been the Nancy Baraza route where the JSC became the first port of call given that the commission has monopoly to discipline its officers.

The judge’s argument mirrors the heated arguments that occurred between Mr Haji and Director of Criminal Investigations George Kinoti on the one hand and members of the JSC on the other. According to sources, JSC wanted the DPP to hand over the evidence to them so that they can look at it and determine whether or not to recommend the formation of a tribunal to investigate the conduct of Justice Mwilu, in which case she would stand suspended and would have tempered the impact the arrest would have had on the image of the judiciary. The other option was to present the evidence to Justice Mwilu and use it as a leverage to have her resign voluntarily.

EXECUTION

However, the JSC meeting with Mr Haji quickly collapsed, voices were raised and some JSC members were threatened with arrest if they were found to be obstructing execution of a lawful order. The disagreements caused the people who were in the JSC boardroom to walk out of the meeting one by one as tempers flared up.

While majority seem to agree that the JSC route would have been the better option, there is a catch. As at now, JSC has only six members, including DCJ Mwilu. Prof Olive Mugenda, Felix Koskei, Court of Appeal judge Justice Mohamed Warsame, Commissioner with the Public service Commission Patrick Gichohi and Attorney General Paul Kihara have not taken their places in the commission since they have not been sworn in the push and pull with between the Judiciary and State House.

CONCLUSIONS

In a matter in which she is a party, Justice Mwilu would not be expected to sit through the deliberations to look at her conduct if the matter was brought to the JSC. This would have denied the JSC quorum which by law should be six. However, the judgement of Justice Wilfrida Okwany Petition No. 212 of 2018 in which a voter, Isaiah Biwott Kangwony had challenged the Independent Electoral and Boundaries Commission over quorum for meetings made interesting conclusions.

The judge held that “the mere fact that there are vacancies in the commission (all Article 248(2) commissions) does not mean that the Commission becomes unconstitutional.” The Justice Mwilu matter is even more complicated as a section of the population is viewing it as the Executive making good its threat to deal with the Judiciary.

ACCOUNTABILITY

This has made the case very political even from the kind of legal representation the Deputy CJ has got. Mr Haji, perhaps feeling the heat at the cadre and number of defence lawyers he is facing, on Friday raised the matter before Chief Magistrate Lawrence Mugambi.

He alleged potential conflict of interest in the battle before the anti-corruption court in Nairobi Justice Mwilu’s legal team is composed of lawmakers who are also members of parliamentary committee proceedings that grill his office over accountability.

The defence team is composed of senators James Orengo (Siaya), Okongo Omogeni (Nyamira) and Mutula Kilonzo Jnr (Makueni), and Members of the National Assembly Dan Maanzo (Makueni), Anthony Oluoch (Mathare), Milly Odhiambo (Suba North) and Peter Kaluma (Homa Bay Town).